The Doctrine Of Parliament Supremacy
It is argued that the doctrine of Parliament supremacy practised strictly by adhering to the concept that Parliament does not use its sovereign power instituted by the legislature, in an oppressive and tyrannical way .
In the absence of a written constitution it is possible for the legislature to use its powers in an unauthorized manner. Even if this could be identified as the matter due to the presence of the conventions we believe that Parliament would not do this due to principles of constitutionalism and rule of law.
With regard to Geoffrey Marshall's argument “the most obvious and undisputed convention of the British constitutional system is that parliament does not use its ultimate sovereign power of legislation in an oppressive or tyrannical way. That is a vague but a clearly accepted constitutional rule resting on the principle of constitutionalism and the rule of law.” three fundamental questions arise. At first we need to consider as how this convention is “enforced”? and secondly whether this convention is an adequate protection against oppression and tyranny and finally how might such protection be strengthened. Though the writer argues that as “clearly accepted” in my view I partially agree and disagree with the writer for the reasons I indicate below.
The doctrine of Parliament sovereignty establishes the supreme law making body of England which is the legislature. The statutes created by the parliament are non justiciable which shows the capacity of Parliament as a retrospective law making body. Though this is the fact, it was different before the 'Glorious Revolution' of 1688. The unlimited parliament legislative authority was not always being accepted in courts. In the case of Dr Bonham's it is stated that the common law had the power to control Acts of Parliament and sometime declare them to be void and similarly in Day v Savadge the view was expressed that if an Act was against natural equity in that it made a man a judge in his own case the Act would be void in it self. After the Glorious Revolution Parliament asserted the supremacy over the monarch which made Parliament held the purse strings and which now had the legislative power.
Parliament which enjoys this legislative authority includes the Queen the House of Lords and House of Commons. Dicey explained legislative supremacy as “ neither more no less than this namely, that parliament thus defined has under English constitution the rights to make or to unmake any law which whatsoever ; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament” . This shows that Parliament can implement or end any law. The word used to describe this is “ Queen in Parliament”. The enrolled bill rule and doctrine of implied repeal strengthen the unlimited power of Parliament as Parliament is unable to bind its successors , it follows that legislation enacted by Parliament is not immune from amendment or repeal by legislation enacted by a later Parliament. In this sense , supremacy could be said as a continuing attribute of Parliament.
Though Parliament has the unlimited sovereign power according to Geoffrey Marshall , it does not misuse it as the existence of the conventions. In general the convention are strictly observed practices which does not have a legal foundation and they are not being challenged or enforceable in courts. The legislative power of Parliament is limited by convention based on constitutionalism and rule of law.
Constitutionalism is the idea that the government can and should be legally limited in its powers and that its authority depends on its observing these limitations “ The central element of constitutionalism is that the political society , government officials are free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme , constitutional law of the society” . Therefore it is obvious and clearly shown that higher law making body is the parliament and the officials are bound by certain limitations when making the law.
Next comes the rule of law which says the law is above every person and it applied to every person though they agreed or not. This is also called as the Supremacy of the law. This undoubtedly expresses that no one is above law and no one is exempted from and even no one can grant an exemption to law. Dicey highlights three main aspects of rule of law which says no one can be punished or made to suffer except for a breach of law proved in an ordinary court and secondly no one is above the law and everyone is equal before the law regardless of social economic or social status and finally the rule of law includes the results of judicial decisions determining the right of the private persons.
Although these conventions are present they are not laws. They are practices in relation to the officials of the executive and judiciary. Dicey explains the nature of conventions as “customs, practices, maxims or precepts which are not recognized by the courts.” In some problem of the constitution , Geoffrey Marshall and Grame Moodies defined conventions as “ rules of constitutional behaviour which are considered to be binding upon those who operates the constitution but which are not enforced by the law of courts”.
The only way these conventions can be enforced is only by codifying them. But they should be recognized in courts if not they cannot be enforced. In the case of A-G v Jonathan Cape Ltd judiciary recognized the conventions, as the convention of the doctrine of collective responsibility was breached. However the conventions can be enforced by codifying, in practically it will be only making more legislation and as rules are broken the codified conventions will break too.
So the conventions it self cannot be treated as an adequate protection against the unlimited law making power of the parliament and using it an oppressive and tyrannical way. As this convention is not enforceable parliament can act in arbitrary manner. There are few situations where the parliament used its powers in an unacceptable manner.
The case Burma Oil Company v Lord Advocate is the best example that shows the ultimate law making power of the legislature. This company was a British oil company operating in Burma during the second world war. This case was filled against the government as the British troops Destroyed the premises of Burma oil company on the orders of monarchy. The final judgement of the House of Lords held that government was liable to pay compensation but immediately after this case government produced a bill in Parliament and enacted the War Damages Act 1965.This was a very special legislation which made the decision of House of Lords null and void.
Another example can be given as the enactment of the prevention of Terrorism Act 2005. This was against the Human Rights Act 1998 which allows the order of home secretary's to arrest any person engages in terrorist activities, and it is a violation of human rights. This is also being called as the 'control orders'.
Abortion Act 1967 is the best example to show how oppressively and tyrannically the Parliaments used its power. This act legalized the abortion of unborn children before they were born in their mothers womb but only by authorised personnel and through NHS.
The Parliament Acts of 1911 and 1949 can also be given as examples for the enactment of legislation that was passed without the approval of the House of Lords with the approval of House of Commons and the Royal assent. This had happened again in Hunting Act of 2004 as it was to ban the hunting of animals House of Lords did not approve it. But the bill was passed with the assent of monarch and the approval of house of Commons. Welsh Church Disestablishment Act of 1915 ,the War Crimes Act of 1991,the European Parliamentary Act 1999 , Sexual Offence Act 2000 were also passed in the same way.
As the above mentioned can be identified as the issue the convention Geoffrey Marshall mentioned cannot be treated as an adequate protection against oppression and tyranny. Even though it is we can identify legal and non legal barriers to Parliament sovereignty which strengthen the protections against this.
When we consider non legal limits it is necessary to keep eye on general public. Lord Ried remarks in the case of Madzimbamuto v Lardner-Burke that there are non legal limitations on the legislative power of Parliament but in practise Parliament can do what it will do. The laws which are passed by the Parliament , has a direct impact on general public” unpopular legislation can have very damaging effect upon a government .Particularly when a general election draws near. Government may therefore seek to do that which makes them popular with the electorate or less refrain from doing that which makes them unpopular” there were several instances where the judicial obedience to Acts of Parliaments can be seen. In this case Lord Reid stated “it would be unconstitutional for the United Kingdom's Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if the parliament did these things. But that does not mean that it is beyond the power of parliament to do such things. If the parliament chooses to do any of them the courts could not hold the Acts of Parliament invalid”.12 The remedy would be for the government to work in favour of general public.
Other than the non legal factors it is essential to look into legal measures that Parliament it self has taken measure to limit its legislative powers. The conventions of the UN Treaties, Treaties from the communities of EU, Human Rights Act 1998 and European Communities Act 1972 can be given as example. The second remedy is that Parliament should adhere strictly to these as well as to the international laws.
According to the cases of Bribery Commissioner v Ranasinghe13 , Minister of the Interior v Harris14 of the Interior we can say the some Acts can be said as null and void. This shows acting according to manner and form will lead to limit its powers. For this as a remedy for an example the Sri Lankan system can be explained. In Sri Lanka conventions are written down but still it cannot be enforceable in courts. As the final conclusion a system which is similar to Sri Lanka where the doctrine of separations of powers is presents with the checks and balance system as Montesquieu explained is strictly advisable. Where the judiciary itself can implement laws and monitor what legislation and executive does and vise versa.
Parpworth. Niel, Constitutional and Administrative Law Oxford University Press 5th edition
Wade, Administrative Law 11th edition
Alex and Carol, Constitutional and Administrative Law